Thomas, Clister Ray
PD-0117-15
| Tex. App. | Feb 4, 2015Background
- Appellant Clister Ray Thomas, a registered sex offender, was indicted for failing to report an anticipated change of address at least seven days before an intended move in violation of Tex. Code Crim. Proc. art. 62.055(a).
- At trial the State presented evidence and testimony emphasizing failure to notify authorities before a move and evidence that Thomas did not reside at his registered address; Thomas testified he never moved and thus had no duty to report.
- The jury charge’s application paragraph, however, authorized conviction only for failing to report a new address after moving (the “after” theory), not the “before” theory alleged in the indictment.
- Thomas was convicted; the Texarkana Court of Appeals initially reversed for insufficiency, the Texas Court of Criminal Appeals reversed and remanded to consider harm from the charge error, and on remand the court of appeals found the charge error egregiously harmed Thomas and ordered a new trial.
- The State petitioned the Court of Criminal Appeals, arguing the record shows Thomas pursued an “all or nothing” defense (he claimed he never moved), so the charge error was harmless; the State also urged replacing Almanza fundamental-error review with ineffective-assistance-of-counsel (IAC) review for unpreserved charge errors.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Thomas) | Held |
|---|---|---|---|
| Whether submission of a manner-and-means in the charge not alleged in the indictment caused reversible error | Charge error harmless because defense was an "all-or-nothing" denial of the conduct; jury would have convicted on either theory, so no actual harm | Error was egregious because the jury was instructed on an uncharged theory and thus was not asked to decide the exact offense charged | Court of Appeals (on remand) held the error was egregious and reversed for new trial |
| Proper standard for reviewing unobjected-to jury-charge error | Almanza review can be displaced by IAC analysis; IAC better addresses unpreserved charge defects and avoids perverse incentives | Almanza fundamental-error review protects defendants when counsel fails to preserve charge errors; IAC is not a substitute on direct appeal | State asked Court of Criminal Appeals to grant review; court of appeals applied Almanza and found egregious harm (question presented to higher court) |
| Whether evidence was legally sufficient to support conviction on the indicted theory | The Court of Criminal Appeals previously held evidence sufficient under the hypothetically correct charge | Court of Appeals initially held evidence insufficient; on remand focused on charge harm rather than sufficiency | Court of Criminal Appeals had found sufficiency; remand required evaluation of charge error harm |
| Role of defense strategy in Almanza harm analysis | Strategy (categorical denial) can render charge error harmless; courts should consider defense posture | If charge authorizes conviction on uncharged theory, defense strategy cannot cure denial of proper jury decision on indicted offense | Courts have applied strategy-based harmlessness in several decisions, but here the court of appeals found the record did not support harmlessness |
Key Cases Cited
- Adames v. State, 353 S.W.3d 854 (Tex. Crim. App.) (discussing unanimity and how defense posture can affect harm analysis)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.) (establishing standard for reversible error from unobjected-to jury charges)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (applying defense-denial logic to find charge error harmless)
- Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App.) (consideration of unanimity error and defendant’s primary defensive posture)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (circumstances where prejudice is presumed for counsel failures)
- Gelinas v. State, 398 S.W.3d 703 (Tex. Crim. App.) (criticizing incentive to remain silent about charge errors and supporting preservation)
- Young v. State, 341 S.W.3d 417 (Tex. Crim. App.) (holding jurors must unanimously agree only on failure to fulfill reporting duty when charge tracks both before-and-after theories)
- Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App.) (discussing preservation and review principles)
- Bluitt v. State, 137 S.W.3d 51 (Tex. Crim. App.) (noting a blanket failure to object does not necessarily waive review for egregious harm)
- Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App.) (due-process concerns when a defendant is convicted of an untried charge)